Hussey v. Sargent

116 Ky. 53 | Ky. Ct. App. | 1903

Opinion of the court by

CHIEF JUSTICE BURNAM.

The appellant, Frederick D. Hussey, brought this' suit against the appellees, George W. Sargent, Ezekiel H. Sargent, Webster-P. Hussey, Emily P. Hussey, Sr., Fannie R. Hussey, Emily P. Hussey, Jr., Catherine P. Hussey, Mabel W. Hussey, Dorothy Hussey, and Sarah L. Hussey, for the purpose of obtaining a construction of certain clauses in the will of-his father, Daniel P. Hussey, who died on the 25th of July, 1883, at his domicile in the county of Hills-borough, in the State of New Hampshire, and whose will, subsequent to his death, was duly admitted to probate in the probate office of that county. He alleges that Daniel P. Hussey’s widow, the defendant Emily P. • Hussey, Sr., accepted the privision.of his will; that he was his only child and heir at law; that at the time of the death of Daniel P. Hussey he was married to Mary W. Hussey, and at that time had only one child, the defendant Emily Hussey, Jr., who was then two years old; that, after the probation of the will of Daniel P. Hussey, the defendants, Catherine, Mabel and Dorothy, children of plaintiff, were born; that, after the birth of Dorothy, his first wife, Mary W. Hussey, died, and he. subsequently intermarried with the defendant, Fannie R. Hussey, but that he had no children by her. He further alleges that shortly after the death of his father, Daniel P. Hussey, he removed from the State of New Hampshire to the city of' Louisville, in the State of Kentucky, with his mother and family, where they have since resided; that the debts and specific legacies of Daniel P. Hussey have all been paid, except one to a public library in the city of Nashua, which is not yet due; that the estate of Daniel P. Hussey consisted entirely of personal property, which came into the hands of the plaintiff as trustee and executor, and that he has since .collected and received the entire income of the estate, and that no part of it is within the State of New Hampshire; that he was born on the 9th of August, 1857. All of the defendants, except Emily p. Hussey, Sr., and the infant children of the plaintiff, are alleged to be nonresidents, and are proceeded against as such by warning order; and it is alleged that the infant defendants have no statutory guardian, and the petition asks that a guardian ad litem be- appointed to defend for them.

The special questions which we are asked to determine, upon this appeal are: First, whether the principal, of the one-fifth of the estate, the income of which was directed to be accumulated for the benefit of the children of plaintiff in the sixth clause of the will, has been disposed of by'the will, or whether, as to this fund, testator died intestate. Second, whether the provisions requiring that the balance of the income upon the one-fifth of testator’s estate, which is directed to be distributed among the children when Emily P. Hussey, Jr., daughter of Frederick D. Hussey, arrives at the age of thirty-five years, if then living, or at that date when she would have been thirty-five years of age had she lived, being then deceased, is void as in contravention of the law against perpetuities. Third, whether or not the bequest, contained in section 8, of the remainder of two-fifths of said estate, the income of which is now payable to testator’s wife during life, is a good and valid bequest in whole or in part, and, if invalid, whether such portion of the estate is or will become vested in the plaintiff or his heirs by inheritance. Fourth, whether or not the provision that the income of any portion of the said remainder be allowed to accumulate is or is not void as against the rule against perpetuities, and, if invalid, whether or not the same is or will become vested in the plaintiff or his heirs by inheritance.

In the joint and separate answer of the infant defendants, Emily P. Hussey, Jr., Catherine P. Hussey, Mabel W. Hussey and Dorothy Hussey, filed by their guardian ad litem, it is claimed that the trusts for accumulation in favor of his wards provided for in the sixth and eighth clauses of his will are valid and enforceable, and that it was the intention of the testator, Daniel P. Hussey, that these defendants or their children, should any of them die, leaving children, before the date of distribution, should under section 8 of his' will receive the principal as well as the accumulated income provided for in that section. He also alleges that his infant wards were intended by testator to be the residuary legatees of any portion of the estate’ not otherwise disposed of in his will, and makes his answer a counterclaim against the plaintiff for the purpose of having the rights of the infants ascertained, and requiring the plaintiff as executor and trustee to account for their shares when so ascertained. The court below held that the provisions of sections 6 and 8 of the will, providing for the accumulation and distribution of the income of Frederick D. Hussey’s children at the end of thirty-three years, at which time Emily would become thirty-five years old, if living, were valid and enforceable, as was also the bequest of the principal, and adjudged that the plaintiff, Frederick D. Hussey, as trustee and executor, should file q. full and complete account showing the annual income from the trust estate from the death of Daniel P. Hussey, and the sums paid by him to Jane M. Littlefield, prior to her death, under the provisions of the sixth clause of the will. To which the plaintiff excepted. The lower court declined to make any adjudication on the question as to whether or not the children of Frederick D. Hussey were entitled to take as residuary legatees that portion of the estate of Daniel P. Hussey not specifically devised by his will. To which the guardian ad litem excepted, and both the plaintiff and the guardian ad litem have appealed.

It is contended in behalf of Frederick D. Hussey: First, that the provisions contained ■ in sections 6 and 8 of the will, for the accumulation of specific portions of the income for the benefit of his children, to be paid to them wrhen his daughter, Emily P. Hussey, Jr., reaches the age of thirty-five, or, if she should not live that long, at such date had she lived, are void, because in contravention of the law against perpetuities, and that, being void, he, as heir at law, inherits the fund'; second, that the testator has failed to dispose of the principal from which this income is derived, and that therefore, as heir at law, he is entitled to it as intestate property. On behalf of the children it is contended by their guardian ad litem that appellant is wrong on both propositions.

In' the first, second, third, fourth and fifth clauses of the will, testator makes certain special bequests about which there is no controversy. We copy the remaining clauses of the will, although only the sixth and eighth are directly involved in this litigation. They are as follows:

“Sixth. After deducting any payment of the legacies before named, I give and bequeath to my beloved wife two-fifths of the income of the remainder during her natural life, and to my said son, Frederick D., I give and bequeath a like sum to-wit: Two fifths of the income of said remainder; and from the remaining one fifth of said income I direct my executors to pay to my sister, Jane M. Little-field, an annual sum of five hundred dollars, to commence at my decease and payable semi-annually, and to be continued and payable during her natural life; the. balance of said one-fifth of said income shall be allowed to accumulate for the benefit of the children of my said son or their heirs, such accumulation and such income to. be equally divided and paid to and distributed among said children when Emily P. Hussey, daughter of Frederick D. Hussey, arrives a.t the age of thirty-five years if then living, or at that date when she would have been thirty-five years of age had she lived, being then deceased.

“Seventh. [He gives, at the death of his wife, $50,000 to the city of Nashua to establish a public library.]

“Eighth. If my said son shall survive my wife, he shall receive at her decease the sum of one hundred thousand dollars from my estate and shall continue to receive two-fifths of the income of the remainder, and any remainder income heretofore received by my said wife, shall, after deducting such sums as to my said executors may seem reasonable and fitting for the support of the children of my said son, be allowed to accumulate for the benefit of said children conditioned as payments and diátribution as in the sixth clause of the will.

“Ninth. Should my said son die before my said wife, leaving no more than two children, I give and bequeath to my sister, Jane M. Littlefield, my brother’s widow, Sarah S. Hussey, and to my said half brothers, Ezekiel H. and George W. Sargent, if living, the further sum of fifteen hundred dollars, to each and all of such one surviving.

“Tenth. In case of the death of my said son before the death of my wife, leaving no children, I give and bequeath to my wife and her heirs one half part of the whole of the remainder of my estate; and the rest and remainder of said estate shall be divided into equal shares between those surviving of the following, to-wit, the widow of my son, my said sister, 'Jane M. Littlefield, my brother’s widow, Sarah S. Hussey, and said half-brothers, Ezekiel H. and George W. Sargent.

“Eleventh. If from any cause my wife should be dissatisfied with the foregoing provisions of this will relative to her share, and should elect to receive such share or distributive part as the statutes provide, waiving the provisions herein set forth, and in lieu of the same, then I order and direct that my said son shall receive one half of the income of the remainder of said estate -instead of two-fifths as set forth in section sixth. And I further order and direct that my said son shall receive on his arriving at the age of forty years the principal sum of which he shall have received the income as provided in the. preceding sections.

“Twelfth. I hereby constitute and appoint Webster P. Hussey of sqid Nashua, and my said son, Frederick D. Hussey, executors of this my last will and testament, hereby revoking any and all former wills by me made, and I hereby authorize and empower my said executors to sell or ex-' change my estate when same shall be deemed best and advisable and for the interest of said estate by my said executors, but no such change shall be made in said estate except sanctioned by both of said executors; further directing that no bonds are or shall be required of them as such executors. I also. direct that all necessary expenses shall belpaid to said executors incurred in the execution of the provision of this will, but that said son shall receive1 no further • compensation for his services in the same. But I direct that said Webster P. Hussey shall receive in addition to such necessary expenses a sum not exceeding at any time (besides expenses) the sum of five hundred dollars per annum, and at no time shall said sum so received exceed two per cent, of the income of said property then in care and trust of said executors, and when such percentage on the income as aforesaid would be less than five hundred1 dollars, then he shall receive and be allowed such sum as would be two per cent, on said income, and such sums so allowed to Webster P. Hussey shall be in full settlement and compensation for his services while acting and serving' as such executor.

“In witness whereof I have hereto set my hand and seal this twenty-first day of June, 1883, and interlineations in section' seven and eight were made before signing.

“Daniel P. Hussey.

“Signed, sealed, published and declared . . . said Daniel Hussey as and for his . . . and testament in the presence of us, who at his request and in his presence and in the presence of each other have subscribed our names as .witnesses thereto.

“Chas. W. Hoitt.

“Ira Gustine.

“Mark G. Wilson.”

That wills must be sustained, and the intention of the testator given effect by courts whenever it can be done without violating established rules of law or some public policy, is a truism so often repeated that it has become trite. But it expresses a rule which is applicable to the construction of every will when its validity or that of any part of it may be called in question. And when one undertakes to make a will it will be presumed that his purpose is to dispose of his entire .estate, and does not intend to die intestate or become/intestate after death. And courts are never disposed to put such construction upon a will as would be likely to lead to intestacy, and this inclination is most strong when it is a residue of personalty which is the subject of the bequest. See Maberley v. Strode, 3 Vesey, 456; Whitcomb v. Rodman, 28 L. R. A., 149, note: “And if the reading of the whole will produces a conviction that' testator must necessarily have intended an interest to be given, and which is not bequeathed by express and formal words, the court must supply the defect by implication. See Phelps v. Phelps, 143 Mass., 570 [10 N. E., 452].” So far as we are able to discover, there is nothing in any clause of this will which indicates an intention on the part of the testator that any part of his estate should under any circumstances be treated as intestate. After providing for the payment of certain specific bequests, he divides the entire remainder of his estate into five equal parts, and specifically disposes of each of these parts. In the sixth clause of his will he gives the income on two-fifths of this remainder to his son, the appellant, without restriction. In the eleventh clause he provides that when he arrives at the age of forty years he shall receive the principal of this two-fifths, and, as appellant has passed the age of forty years, no question can rise as to this two-fifths remainder. He then gives the income. on two of the other fifths of his estate to his wife for life, and in the eighth clause of his will provides that if his son should outlive his mother he shall receive therefrom $100,000 in addition to the two-fifths already devised to him; and testator then provides in clause S that his executors may deduct such sums as may seem reasonable to them from the income of the remainder of this two-fifths of his estate, on which his wife during her life had drawn the income, for the support of his grandchildren, and that any remainder of income from this two-fifths shall be allowed to accumulate for the benefit of the grandchildren, conditioned as to payment and distribution as in the sixth clause of his will. In the ninth clause he provides for an additional bequest to his brothers and sisters of $1,500 in the event his son shall die before his wife, leaving only two children. In the tenth clause he provides for the distribution of his estate in case his son dies before his wife, leaving no children, and in the eleventh clause he provides for the contingency of his wife renouncing the provision made for her in the will and claiming dower.

We will not consider the disposition made by testator in the sixth clause of the will of the remaining one-fifth of his estate. Out of the income of this one-fifth, testator directs that his executors shall pay his sister, Jane M. Littlefield, annually during her life, $500, and that the balance of the income on this one-fifth shall be allowed to accumulate for the benefit of his grandchildren or their heirs, and that such .accumulations and income should be paid to them when his granddaughter Emily was thirty-five years of age, or would have been had she lived. It must be conceded that, in order to sustain the bequest of' the principal of this one-fifth interest of the estate, we must believe that testator intended and has attempted to make such a bequest. It is clear from the entire will that testator intended that the bulk of the .estate, after the death of his widow, should go for the benefit of his son and his grandchildren, and that, distrusting the improvidence of youth, he postponed the time when both his son and his grandchildren could take possession of the principal of his estate devised to them, until they had acquired the discretion which is tba usual accompaniment of more mature years. The provisions in the will for the benefit of the wife, and son of the testator are clear, definite and explicit. There is not the slightest intimation that testator intended that either of them should fake by inheritance as well as by bequest. And we -think it is equally clear that he intended that his grandchildren should taka the entire accumulations of the- one-fifth of his estate devised in the sixth clause of his will, subject, however, to the annuity in favor of his sister, Mrs. Jane M. Littlefield, during her life. It is contended for appellant that the words “accumulations” and “income” are synonymous, and both refer to the premium or interest which may be realized upon the principal of this one-fifth of testator’s estate, and neither has any reference to the principal of the 'one-fifth. It must be conceded that in its ordinary use the word “accumulations” is used in this sense, but in law it has a more definite and technical meaning. Black, i'n his Law Dictionary, defines its legal meaning as follows: “When an executor or other trustee masses the rents, dividends, or other income which he receives, treats it as capital, invests it, makes a new capital of the income derived therefrom, invests that, and so on, he is said to accumulate the fund. And the capital and accrued income thus procured constitute accumulations.” We .are satisfied that the testator used the word “accumulations” in this sense. He plainly intended that this particular fund should grow; that the surplus income, after payment of the annuity of $500 to his sister, should be added to the principal, and become a part of the capital from year to year; and that in this way a fund should be .accumulated from the capital and accrued income for the benefit of his grandchildren. There is another well-settled rule of construction that would give the principal of .this one-fifth to the grandchildren. The testator nowhere provides that it shall go to any one else, or fall inio the residue of his estate, and where the interest of a fund is bequeathed to a legatee or in trust to him, without any limitation as to tha continuance, the principal will be regarded as bequeathed also. See Craft v. Snook’s Ex’rs, 13 N. J. Eq., 121, 78 Am. Dec., 94; Gulick’s Ex’rs v. Gulick, 25 N. J. Eq., 324; Wainright v. Wainright, 3 ves. Jr., 558; Hale v. Beck, 2 Eden, 229. We are therefore of the opinion that testator’s grandchildren took not only the income, but also the principal, of the one-fifth of the estate.

.We will now proceed to the consideration of appellant’s second contention, that the provision directing the accumulation of income and its distribution to the grandchildren when Emily should arrive at the age of thirty-five years, or would have reached that age if living, violates the rule against perpetuities. Mr. Perry, in his work on Trusts (5th Ed., vol. 1, section 381), says that: “In determining whether a particular devise is contrary to the rule against perpetuities, the inquiry is not whether the contingency upon which the testate is to. vest actually occurs, within the time limited by the rule, but whether it is possible that the event may not happen within the time. If it is possible that the event upon which the executory devise,. or shifting or springing use, is to. vest in some person, may not happen within the time, the executory estate is void, although in fact the event actually happens within the time.” Underhill on. the Law of Wills (vol. 2, sections 883, 886) is to the same effect. And this view was adopted by this court in Stevens v. Stevens, 21 R., 1315, 54 S. W., 835; Coleman v. Coleman, 23 R., 1476, 65 S. W., 832. Undoubtedly this provision of 'the will under our statute against perpetuities would be held void, but 'this being the will of a testator who died domiciled in New Hampshire, which disposes alone of personalty, it must be construed according to the law of New Hampshire. On this point, Judge Story, in his work on Conflict of Laws (section 465), says: “It is now a well-settled principle in the English law that a will of personal property, regularly made according to the law of the testator’s domicile, is sufficient to pass such property in every other country in which it is situated.” Page on Wills, section 35, says: “Where a bequest of personalty creates a trust, its validity is primarily to be determined by the law of the domicile of the testator, not the law of the place where the property is situated.” On the same .subject, Mr. Wharton, in his Conflict of Laws (section 570), says: “By the English common law, as held both in England and the United States, testamentary capacity as to personalty is governed by the law of the domicile of the testator at the time of his death.” And i * this rule has been followed by this court in numerous decisions. See Chapline v. Moore, 23 Ky., 175; Fletcher’s Adm’s. v. Sanders, 37 Ky., 345, 32 Am. Dec., 96; Townes v. Durbin, 60 Ky., 355, 77 Am. Dec., 176; Dannelli v. Dannelli’s Adm’r., 67 Ky., 57. Indeed, we do not understand that this proposition of law is controverted by appellant. It therefore remains to be determined whether the bequest at the time it took effect was in conflict with the law of New Hampshire, the domicile of testator.

It appears from the evidence that there is no statutory provision in New Hampshire against perpetuities, and that the common-law rule prevails there, except in so far as it has been modified by the decisions of the Supreme Court of that State. The common-law rule required that every interest disposed of by will should vest within a life or lives in being at the creation of the estate, and twenty-one years and ten months thereafter. See Blackstone’s Com., 174; 2 Minor’s Institutes, 376, 377. And it is clear that, tested by the restrictions of the common law, the devise in this1 clause to testator’s grandchildren is. void because it postpones the enjoyment of the income for a period of thirty-three years, Which is longer .than .the time allowed by the common-law rule. But the Supreme Court of New Hampshire, in 1891, in their-decision in Edgerly v. Barker, 66 N. H., 434, 31 Atl., 900, which is also reported in 28 L. R. A., 328, modified that rule of the common law' as to perpetuities in a very important particular. In that case the testator devised the remainder of his estate to trustees, who were to pay fixed sums to the testator’s two children for life, with remainder of the estate over to testator’s grandchildren, born and unborn, and to be paid to them when the youngest should arriva at forty years of age, and upon their giving bond to the children of the testator for the payment of the support provided for them in the will. At common law this restriction in the vesting of the estate would have rendered the devise void, but the court sustained it by modifying the provision so as to make the gift take effect when the youngest child reached 'the age of twenty-one years instead of forty, upon the theory that the controlling idea of the testator was that his grandchildren should have the remainder of his estate, and that the postponement of this devise until the youngest child was forty years old was.;>, secondary and 'Subordinate, and that the court would permit the plain intent of the testator that his grandchil-. dren should have the estate to be defeated by the pro vision that it should not take effect until the youngest was .years old. The edition, of the Lawyers’ Reports tated, in a note appended to this case, says: “The application of the cy pres doctrine to a gift which is not charitable, so as to .save it substantially, when thp time of ,,<Jistribution fixed by the will is unlawfully remote, is somewhat . unusual, but the opinion in the above case presents much authority for the essential principle involved.” And, whether the decision in that case be sound or not, it is conceded to be the laV of New Hampshire, under which the validity of the devise in this case must be determined.

It is very earnestly insisted for the appellant that the difference between this case and the Edgerly case is so marked as to except it from the. rule announced in the Edgerly case. The basis of this contention is that in the Edgerly case the beneficiaries were known, and the limitation was only as to the time when the .estate should pass, whilst in this case the persons who are to take Can not be known until his grandchild Emily should arrive at the age of thirty-five, or would arrive at that age provided she is alive. And in support of this contention appellants have •taken the deposition of a distinguished lawyer and citizen of New' Hampshire, who, in answer to a request by appellant to point out the distinctions between this case, and the Edgerly case, said: “In the Barker case, as the bequest would noit take effect until all the grandchildren were born and the youngest became twenty^one, the same persons would receive the property ,as would have taken it at the end of forty years. No change of the beneficiaries could have been made by the court’s action, whilst in the Hussey case the vesting of 'the estate at the end of twenty-one years instead of thirty-three years would cut off any grandchildren born during the twelveryear period, a change of the beneficiaries would have been made by the court’s action, .and the testator’s primary purpose altered.” Upon cross-examination, the witness was asked this question: “Mr. Senator, I think it appears from the report of the Barker case that at the date that case was decided by the Supreme Court, or at .least at the time when testator died, the testator’s son was thirty-five years old and the son’s wife was thirty-two years old, and they were approximately at these respective ages at the time the case was decided. Assuming that to be true, suppose that a child was born to that "couple after the decision of the Supreme Court of New Hampshire in the Barker case; in your opinion, would that child share with other grandchildren in testator’s estate, or would he or she be cut off? Answer, I think they should be cut off, because the estate could not vest until twenty-one years, after his birth, and such a limitation after life not in being or gestation when testator died would be void. What the court meant as to-unborn children not then in gestation, I can not discover. As a matter of fact, I suppose there were none.” Question 17, “Then in the Barker case there was a possibility of a grandchild being born who could not share in the testator’s "estate; that is a fact, is it not? Answer. Yes, if that was the purpose of the court in that case. Possibly the court intended that all of the unborn children should be reckoned and the property vested at the end of twenty-one years from the birth of the youngést child, whenever born. If so, this would tend to impeach the soundness of the decision in Edgerly v. Barker, but would not alter the fact that there was no possibility of change in the beneficiaries by cutting the limitation from forty years to twenty-one years. Question 18. Has the decision in Edgerly v. Barker been overruled or modified? Answer. Not that I am aware of.”

It seems quite plain that in Edgerly v. Barker the court put the period of distribution at the time when the youngest child then living became twenty-one years of age, so that there was a possibility in that case that other children might be born after that time who would be excluded. So, after all, it seems to us that it is impossible to distinguish on principle this case from that, and that, following the doctrine laid down in that case, the chancellor properly decided that the provision of the will directing the accumulation of the income was valid and enforceable for a period of twenty-one years after testator’s death, and should be carried out by the trustee, and that two-fifths of the income, to be accumulated under the eighth clause of the will after the death of testator’s widow, stands upon the same footing as the one-fifth directed to be accumulated under the sixth clause of the will, with the exception that the support for the children is to be deducted from the income derived from this interest, and that both funds go to the grandchildren in twenty-one years after the probation of the will of Daniel P. Hussey.

• The third ground relied on for a reversal is that the chancellor erred in requiring an accounting in this action by the executor and trustee, as he qualified as such in the State of New Hampshire and received the éstate by virtue thereof, and appellant has cited numerous authorities to support his contention that an executor can not be sued out. of the jurisdiction of his appointment for a failure to carry out the trust imposed upon him. But the law on this question has long been settled against his contention in this State by numerous adjudications of this court. In the-early case of Dorsey’s Executor v. Dorsey’s Adm’r, 28 Ky., 280, 22 Am. Dec., 33, it-was held that a distributee of a decedent might enforce distribution, in the courts of this State, of assets received by the administrator appointed in Maryland, if found in this State. This was followéd by Atchison’s Heirs v. Lindsey, 45 Ky., 86, 43 Am. Dec., 153, in which the administrator and infant heirs of John Atchison sought to recover of James Lindsey, who administered upon the estate of decedent in South Carolina, certain assets received by him in that State. The contention was made in that case that, es Lindsey was appointed administrator in South Carolina and received the assets sued for there, he could not be held responsible in the tribunals of this State for the surplus remaining in his hands at the suit of a local administrator and infant heirs of decedent.. In response to this contention, after referring to Dorsey’s Executor v. Dorsey’s A.dm’r, the court said: “Upon express authority of this case, and upon our own sense of what is required by convenience and justice, and of the comity due-sovereignty and laws of South Carolina, we are of the opin-' ion that the mere fact that Lindsey was appointed administrator in that State and received there the assets for which he is now charged, does not of itself exempt him from all. liability to be sued in tribunals of this State for a claim growing out "of his having thus received assets, to the proceeds of which the complainants or some of them are entitled. Whether any decree should finally be rendered against him on this account may depend upon the facts disclosed in his answer, and upon the proof; but we think he was bound to answer.” The question was again before this court in Manion’s Adm’rs v. Titsworth, 57 Ky., 597, and in a well-considered opinion by Judge Simpson it* was decided “that it was settled doctrine in this State that the administrator or executor who is appointed or who qualified in another State and there receives assets in his hands, may be sued in the tribunals of this State by persons entitled to such assets, if he shall have removed to and settled in this State.” The question was again before the court in Keiningham v. Keiningham’s Ex’r, 24 R., 1330, 71 S. W., 497, and the doctrine was reaffirmed. Appellant avers that his domicile-is in this State, that the property disposed of by the sixth and eighth clauses of the will of testator are in his possession and under his control, and that no part of it is within the State of New .Hampshire.It is manifest that the New Hampshire courts could not enforce any decree for a settlement of appellant’s accounts unless he voluntarily came within their jurisdiction, and that, under the decisions quoted supra, the courts of Kentucky have jurisdiction both of him and the property received by him under the will of testator for the purpose of requiring an accounting at his hands. We therefore conclude that the court did not err in so adjudging. In our opinion the trial court properly declined to pass upon the question raised by the guardian ad litem as to who were intended by testator to be the residuary legatees of any portion ’of his state not otherwise disposed of by Ms will.

For reasons indicated, the judgment upon the original appeal is affirmed, and the cross-appeal prayed by the guardian ad litem dismissed, and the cause remanded for proceedings not inconsistent with this opinion.

Whole court sitting.

Petition for rehearing by appellant overruled.